The imminence of climate change and the peril it presents to life or serious injury – A defence.

Update: Please see my comment at the end of this post for an important update regarding the importance of framing your necessity defence if asked a counter factual question under cross examination.

Introduction

My name is Andrew Harmer. I’m a parent of two young children aged 6 and 8, and since the birth of my eldest child I have become increasingly active in the climate movement. In my professional life, I’m a Senior Lecturer in Global Health at Queen Mary University of London. I have been a global health scholar for two decades and consider myself to be an expert in my field. I have specific expertise in the health impact of climate change on the global population.

I have supported the social movement Extinction Rebellion since 2018. I participated in the April Rebellion ‘Beyond Politics’ from 15th to the 25th April. On the 21st April, I walked onto Waterloo Bridge around midday and sat next to protestors at the South end of the bridge. A police officer approached me and informed me that a condition had been imposed on protest at Waterloo Bridge. I was also informed of the consequences of failing to comply with that condition. I refused to comply with the condition and was arrested.

Your worships, my work requires me to comprehensively review the latest scientific analysis of climate change, including various reports from the Inter-governmental Panel on Climate Change (the IPCC), reports published by the World Health Organisation, the United Nations Environment Program, the World Meteorological Organisation, the World Bank and others. Consequently, I have a comprehensive understanding of the science of climate change. Through my research and teaching, I am acutely aware of the direct and indirect effects of climate change on health, the details of which I would like to describe briefly to the court in my defence. It is clear to me that climate change presents an imminent threat to our health and, indeed, to our lives.

My assessment of the evidence of anthropogenic global warming and the UK government’s inadequate response has led me to the inescapable conclusion that immediate action is necessary to stop people dying today from the impact of climate change, and to prevent further deaths in the future. As a public health professional, I have a duty to act.

Although I am not legally trained, I will be defending myself today. My defence is one of necessity, which I understand is a defence afforded to me by English Law “in extreme circumstances” (R v Martin). Your worships, we are in extreme circumstances.

I will argue that I was impelled to act as I did because, as a result of what I reasonably believe to be the situation, I had good cause to fear that otherwise death or serious physical injury would result.

I will also argue that a sober person of reasonable firmness, who shares similar characteristics to myself, would have responded in the same way that I did.

Finally, I am convinced of the efficacy of non-violent direct action in helping governments make necessary changes in policy, and by so doing change the course of history. Since the April protests, there have been numerous polls and analysis confirming the pivotal role that Extinction Rebellion has had in shifting the climate change discourse. I will argue, therefore, that there is a rational connection between the aim and the method of my actions.

Imminence

Your worships, the first part of my defence concerns the requirement to demonstrate that I acted to avoid “an imminent peril of danger to life or serious injury” (R v Shayler para.63).

As evidence of the imminence of the threat, I would like to speak to a figure provided by Professor Tim Jackson. Professor Jackson is a world-renowned authority on sustainable development and Director of The Centre for the Understanding of Sustainable Prosperity at The University of Surrey. This figure appears in a report that was published earlier this year by the Centre.

Figure 1: Historical emissions and future emission pathways (production perspective)a) trend rate of reduction; b) zero carbon 2050 along a linear pathway c) zero carbon 2031 along a linear pathway; d) 15% annual rate of reduction. The dotted vertical line indicates the point at which the carbon budget is exhausted for pathways (a) and (b).

The Figure plots the reduction of the UK’s carbon dioxide emissions. It shows years along the bottom axis and CO2 emissions on the side axis measured in million tonnes of CO2 (to give you a sense of scale, one tonne of CO2 would fit into a cube 8m x 8m x 8m – or a large 3 story town house). So a million tonnes (1MtCO2) would be a million large three story town houses of CO2 emitted into the atmosphere every year. In 2010, the UK emitted 500Mt of CO2 – i.e. half a billion 3 story town houses full of CO2. . The UK is reducing its emissions at about 4% a year, so every year it emits a little bit less CO2 – which is why all of the lines go down from left to right. If you follow the turquoise line you will see 4 lines diverging at around the year 2018. In 2018, the UK produced 364MtCO2.

It’s good that, as a country, the UK is reducing its CO2 emissions. However, the IPCC has calculated a global carbon budget for the planet of 420Gt of CO2. To give the world a 2/3rds chance of staying below 1.5C, emissions cannot exceed that budget – period. Each country has a portion of that budget – the UK’s portion is approximately 2.5Gt.

A simple calculation will tell you how many years are left until the UK exceeds that budget. If it continues to reduce its emissions by 4%, it will exceed its budget at the vertical dotted line that crosses lines a and b. The year is 2026 – in 6 years’ time!

If we follow (b) line all the way down to 2050 – i.e. the UK government’s net zero target – and add up all the CO2 that it emits along the way, the UK will exceeded its carbon budget by 3.5Gt! If the UK government wants to stay within its budget, and reduce its emissions in a linear fashion, then it has until around 2030 to reach net zero emissions (line c). Obviously, if the government reduces its emissions at a greater rate earlier on (15%), then it will have more time (line d)

This is the timescale we are talking about. The UK will blow its budget in 6 years at its current rate of emissions reduction. It has 10 years on a linear trajectory, and longer only if it rapidly reduces its emissions immediately.

Your worships, this Figure is the less alarming of two Figures presented in the report. That’s because it only shows how much CO2 the UK produces. It does NOT show how much CO2 is consumed. The distinction between CO2 emissions from production vs consumption is important. The Figure does not, for example, include emissions from aviation or shipping, or for any emissions from goods or services that UK citizen’s consume but which are produced overseas.

The UK’s consumption emissions are truly alarming: they are 60% higher than its production emissions, and the rate of decrease year-on-year is only 1.5% per year rather than 4%. At that rate the UK will exceed its budget by 2023 (i.e. in just 3 YEARS TIME) and – if we proceed towards the government’s net zero target by 2050 – at that rate the UK will end up emitting 13Gt of CO2 – or 4.5 times its budget.

Your worships, the most important point to make is that a 1.5 or even 2.0C world requires global emissions to peak and rapidly decline NOW. Not in a year or five years’ time. Right now.

In fact, emissions should have peaked years ago, but they haven’t. And now they have to reduce at an almost impossible rate (7.6% globally per year according to the UNEP report published last week). If the global community leaves it another year or two, it will simply be impossible to prevent our planet from warming above 1.5 degrees.

Emissions must peak immediately, indeed should have peaked in 2016!

Our species has been living on this planet for 300,000 years. On a geological timescale, that is barely a heartbeat. Reflect on the following analogy: Condense the history of our planet into one day – 24hrs. Now look at your clock. Life on Earth begins at 10.00pm – 2 hours before midnight. Dinosaurs come onto the scene at 11.00pm. And humans? 11.58 and 49s. CO2 emissions really took off at the start of the industrial revolution – maybe around 1750. On our metaphorical clock, that’s 5 milliseconds before midnight. It takes 400 milliseconds to blink.

So consider the time we have – a decade – in which to avert significant excess mortality and morbidity. A decade is infinitesimally small. So small that it takes the concept of ‘imminent’ into the realms of the absurd. Whatever we do, we must do it immediately.

The peril of danger to life or serious injury

Your worships, I would now like to demonstrate that I acted to avoid the peril of danger of life or serious injury.

To do that I will draw on scientific evidence from the World Health Organisation and also the findings from a recent report published by the Lancet, one of the most prestigious and influential public health journals in the world. To repeat, I acted because of this knowledge, and because I believe it to be morally inexcusable not to act knowing what I know.

Your worships, the World Health Organisation has published a Quantitative Risk Assessment of the effects of climate change on health. In total, the Organisation estimates as many as 250,000 additional deaths between 2030 and 2050. That figure is horrifying enough, and yet many scholars consider it to be a conservative estimate. To give you just one illustration – reductions in food availability – which the WHO does not factor into its calculations – by 2050 could lead to an additional half a million deaths.

The Lancet Countdown report, published annually, is the result of work by 35 academic institutions and UN agencies from every continent. Its analysis represents the work and consensus of climate scientists, public health professionals and doctors. It provides the most authoritative assessment of the impact of climate change on the health of the global population. Here is what the report documents:

Last year alone there were an additional 220 million exposures to heatwaves [with each exposure defined as one person aged 65 years or older exposed to one heatwave]. It is worth recalling that during the European heatwave of 2003 there were 20,000 additional deaths. At 3-4 degrees of warming, that would be a normal summer;

That means more heat stress and heat stroke, acute kidney injuries, heart failures, but also increased risk of interpersonal and collective violence;

A business-as-usual response to climate change is expected to result in an additional 2 billion flood-exposure events per year by 2090, which – and I’m quoting the report here – “will likely overwhelm health systems and public infrastructure”;

With more heat and rain, conditions are becoming increasingly optimal for diseases to spread. And that means more people will be at risk of infection. For example, a billion additional people will be at risk of malaria and dengue by the end of the century as the mosquito responsible for spreading those diseases moves into new territories.

Furthermore, fossil fuel emissions that contribute to global warming also produce fine particulate matter that pollutes the air we breathe. The health consequences of this are profound:

In 2016, air pollution resulted in 2.9 million premature deaths from cardiovascular and respiratory diseases;

In the UK, according to a study produced by Kings College London, air pollution resulted in 40,000 premature deaths in 2016 from lung and heart disease

And in London, it’s 9,400 premature deaths every year;

In a single Borough, Tower Hamlets, 158 deaths were attributed to air pollution.

Your worships, these data do not even cover the health effects that will accrue from mental trauma, migration, or poverty – all of which will certainly increase as the world warms up.

The Lancet Commission concludes: “unless immediate action is taken a child born today will experience a world that is more than four degrees warmer than the pre-industrial average, with climate change impacting human health from infancy and adolescence to adulthood and old age”.

The point I am making is that the threat to mortality and morbidity is not imminent in the sense that it is about to happen; rather, it is happening right now. We are fortunate to live in a country that is relatively insulated from the effects of climate change – relative, that is, to the many millions of people who live, for example, near to the equator, or – closer to home – those living in the Mediterranean – two areas of the world that are likely to be impacted the most in the years to come. But that relative insulation will not last, and it will be increasingly less effective insulation as we approach the 3-4 degrees of warming currently anticipated along a business-as-usual emissions pathway.

Consider the prognosis of a 4 degree world by one of the world’s leading climate scientists Professor Will Steffen’s. He described the “carrying capacity” of a 4 degree world of 1 billion people. He left unstated what he thought would happen to the rest of the global population. When the best of our scientists – experts who know more about the future of our planet than anyone else alive – tell me that my home, our planet, can only sustain one tenth of the global population if we continue along a particular path; and if I know that we are moving inexorably along that path with no sign yet of diverting from it; and that the end point – 4 degrees of warming – will be upon us in the lifetime of my children. Then I’m sorry, but I feel compelled to act.

D. A rational connection between the aims and method

Your worships, I have one further argument to make in my defence. I understand that I am required to demonstrate a rational connection between the aim and the method of my action.

Despite decades of climate activism, governments globally have failed individually and collectively to prevent global warming. Globally, fossil fuel emissions continue to rise (by 0.6% in 2019) when they should have peaked and already begun to fall. Historically, non-violent civil disobedience has been a necessary catalyst for social change. It abolished slavery, enfranchised women, freed populations from colonialism, and ended legally sanctioned racial segregation. In short, civil disobedience is necessary and effective. Evidence suggests that a brutal dictator could be toppled if just 3.5% of a population engaged in sustained non-violent direct action. Climate change is as brutal as any dictator but – if left unchecked – will prove far more brutal, and to all of us not just the citizens of this or that dictatorship. As a method, therefore, non-violent direct action is demonstrably effective.

In the face of government inaction, we need civil disobedience. Without it, I contend that the UK government would not have felt emboldened to enact legislation to reduce CO2 emissions to net zero by 2050.

You worships, there is mounting evidence that the actions of the April rebellion have had a positive effect. Prior to the first XR protest on Waterloo Bridge in November 2018, climate change did not enjoy the high profile it has today. In June this year, a YouGov poll found that 45% of 18-24 year olds thought climate change was one of the most pressing concerns. And, to quote YouGov: “The sudden surge in concern is undoubtedly boosted by the publicity raised for the environmental cause by Extinction Rebellion”.

Summary

Your worships, in summary my defence of necessity rests on my reasonable belief that I must act now to avert an imminent danger to life from climate change. I have thought very carefully about the effects of my action on the general interest of the community, including the rights of others, and concluded that it was necessary for me to act to prevent a greater evil from occurring. That evil is now quantifiable in terms of both mortality and morbidity. I have provided evidence to show a) the imminent threat, b) the peril of danger to life and c) how my aim and method of action are rationally connected. I trust that you will take this evidence into account as you pass judgement today. Thank you.

14 thoughts on “The imminence of climate change and the peril it presents to life or serious injury – A defence.”

Blinding. Thank you, Andrew. Many of us are reading and absorbing this; exceptionally clear marshalling of the facts. Thank you from all we punch-drunk activists left in open-jawed and exhausted disbelief at the lack of engagement in the face of now overwhelming evidence. We’re all with you today.

Hi I am court support these are some notes I was writing today.
Next are some issues that came up but did not get fully aired as this young
defendant’s case was dismissed after he successfully cross examined McM. The BWV
proved that he did not have enough time to move and he was not resisting arrest.
The defendant self-represented:
 Question to McM: How much time should you give between reading the order and
the arrest? McM answered that it was subjective and at the discretion of the
arresting officer. This was a bit woolly I thought and McM did not seem
comfortable with the question.
 Also to McM: who were the community that were disrupted? McM rattled out the
usual local business, people traveling to work people going about their daily lives
etc. The defendant asked what evidence was there that they were disrupted.
McM waffled on a bit about transport and loss of business. Again this was not
followed up but was going to be part of the defence in summing up. The issues
were that the protestors were interacting with the public. The public was
mainly receptive with many people stopping to talk, staying to pick up leaflets,
getting involved in activities and joining the protest. It could be argued that this
was public information with examples of the environmental benefit on a no cars
bridge with trees on it.
 Again to McM: was it not the police that were causing undue disruption with road
blocks and badly managed traffic management. Again McM waffled about his
duty to the community. The defendant also wanted to follow up the need for
non-essential traffic and that XR had given ample warning for the reorganisation
of both essential and non-essential traffic, with a number of other bridges within
a mile or so of Waterloo. The argument about Guys and St Thomas’s hospitals is
irrelevant with one served directly by London Bridge and the other by
Westminster Bridge.
 The protests at Waterloo and Marble Arch were different. “I was protesting in
an ‘Act Now’ protest, the protest at Marble Arch was for a ‘Citizens Assembly’.
This was not what I wanted to protest about. I was not given an option to
continue my Act Now protest anywhere else”. The defendant stated this but did
not get a chance to follow this up.

Within his defence he wanted to highlight other issues:
 There was little disruption after 9pm and the police and TfL easily able to
redirect traffic across the other two bridges. The case for the night time
economy is exaggerated and embellished.
 The balance of rights between the protestors and the community. McM talked
about shoppers and tourists as part of the community. The defendant made that
point that the protesters were as much part of the community as these people
and had significantly more important business than tourism and shopping.
 The community has a right to understand and engage educationally with the
challenge of climate change

I agree Tom. But as Greta said this time last year: “If solutions within this system are so difficult to find then maybe we should change the system itself”. That’s still priority number one as far as I’m concerned.

Update: Day two of my trial took place on Monday 27th January. I had the opportunity to present my defence, as did my 3 co-defendants, but – ultimately – we were found guilty. I was given a 9 month conditional discharge and ordered to pay £279 court costs + £20 victim support. The magistrate provided the following reasoning for why she did not accept the necessity defence:

Following their defence, the magistrate asked each defendant the same question: What would be the impact if you had complied with the condition (i.e. if you had complied with the S.14 condition and moved to Marble Arch to continue your protest). What would the impact have been, if you’d done that? The question was kept open, with no further guidance from the magistrate. In retrospect, I believe that this was deliberate.

All defendants, including myself, answered that the impact would be to diminish the effect of the protest. That was the wrong answer! The correct answer should have been framed in such a way that it supported the necessity defence (i.e. if I had complied with the condition, then the imminent threat to serious injury or death would have been realised).

It is, of course, very difficult to show that that would indeed have been the case. How can you demonstrate that by leaving a protest site and moving to another protest site, people are injured or die? It is easier to do that if you are stoping the flow of oil to a pipeline or disabling a power station, etc. Nevertheless, in order to even begin a successful necessity defence in relation to the April XR protest, one would have to consider this line of argument.

In her summary, the magistrate was able to argue that none of the defendants had convinced her that had they left Waterloo bridge, then serious injury or death would have followed. Of course, that’s because none of us thought to make that argument in answer to her question. On reflection, I believe the magistrate asked a deliberately open question in order to make it easy for each defendant to choose the wrong path – which we all did. Surprisingly, neither of the two barristers defending two of my co-defendants, had prepared their clients for this question.

In the future, defendants seeking to argue necessity should be aware of this counter-factual question (what would happen if you complied) and be able to frame it in terms that will satisfy a judge – so that they are sure – that serious injury or death will follow.